Missing the 'Larger' Point

Thomas Joscelyn

July 19, 2011 4:32 PM

On Saturday, Benjamin Wittes and Robert Chesney published another response at the Lawfare Blog to questions I think Matthew Olsen, who has been nominated for the position of National Counterterrorism Center (NCTC) director, should be asked at his forthcoming Senate confirmation hearing. Wittes and Chesney spend most their time arguing against positions I do not hold, have not advocated, and are not relevant in this debate. While they concede important ground, they simply miss the “larger” point that I have made altogether.

They argue that I dismiss their “larger points about the inherent imperfections of detention,” including “false positives” (which they define as “captures of and decisions to continue to hold persons who turn out not be the people whom the state believes them at first to be”) and “false negatives” (which they define as “releases of or decisions not to capture persons who turn out to be dangerous”).

I did not discuss, let alone dismiss, “false negatives” or “false positives” in my previous reply. I did dismiss Chesney’s conflation of Guantanamo detention and transfer policies with detainee releases in Iraq and Afghanistan because, as I wrote, it “conflates all sorts of issues that have no bearing on the matter here.” That’s still true, for a lot of reasons.

As for Wittes’s and Chesney’s “false negatives” and “false positives,” I agree with them that the task “is to adopt procedures that minimize both errors as much as possible” and that this is a tricky business. But this has nothing to do with the specific issues at stake in our debate.

There is no evidence in the task force’s final report that it found a significant number of “false positives.” The task force classified 95 percent of the detainee population into four types of threat profiles, ranging from low-level foreign fighters to senior terrorist leaders. The task force did not deem any of the detainees, including the remaining 5 percent, innocent. Nor did it approve any detainees for outright release. Were there some detainees at Guantanamo in January 2009 who could have been transferred earlier? Certainly. But there is simply no evidence that “false positives” were a significant problem the task force had to handle.

As for “false negatives,” I do not dispute that there are some mistaken “releases of…persons who turn out to be dangerous.” That will always happen. But that is not at issue here. The issue I’ve raised is the decision to approve for transfer large numbers of detainees who are classified as “high” risk after years of analysis by intelligence professionals. I am not questioning isolated or even numerous “false negative” errors. I am questioning frequent “high” risk transfer practices – that is, the dozens upon dozens of cases where the U.S. government has knowingly transferred, or approved for transfer, “high” risk detainees.

To put a fine point on it: Joint Task Force Guantanamo (JTF-GTMO) correctly concluded that Said al Shihri was a “high” risk al Qaeda leader. The Bush administration transferred him to Saudi Arabia, he was enrolled in a jihadist rehabilitation program that was never designed for the true ideologues, and eventually fled to Yemen. He is currently the deputy leader of al Qaeda in the Arabian Peninsula. His brother-in-law, Yousef al Shihri, was also deemed a “high” risk who was likely to seek out a martyrdom opportunity. Yousef al Shihri also joined AQAP and was killed by Saudi security forces while wearing a suicide explosives belt.

Abdul Hafiz was determined to be a “high” risk detainee by JTF-GTMO after he was implicated in the murder of a Red Cross worker. The Obama administration transferred him to Afghanistan in December 2009. Hafiz found the nearest Taliban office and got back to work almost immediately.

These three examples are not the result of “false negatives.” They are the result of risky transfer decisions. And there are many more examples like these. It is important to learn from them as we go forward.

Instead of addressing specific risky transfer practices, Wittes and Chesney wonder if I am “criticizing across the board the decision by the last administration to attempt resettlement and repatriation of detainees.” I have never made such a sweeping criticism, nor do I think such criticism is warranted. They also wonder if I think “the executive branch simply cannot and should not release anyone who previously was determined at some stage to be dangerous.” I have never argued this either.

Wittes and Chesney are confident that the task force improved upon JTF-GTMO’s work even though they have not provided any concrete reason to believe that the task force came to radically different conclusions about the threat-level of the detainee population. JTF-GTMO clearly knows what it is doing. It is a professional intelligence operation and there is no reason to think that it mischaracterized a significant number of the detainees remaining at Gitmo in January 2009. The task force also approved “high” risk transfers to countries that have repeatedly failed to mitigate the security risks involved.

Previously, I asked: “Most importantly, does Wittes know what criteria the task force chose to employ (or was given by the Obama administration) when determining which detainees to transfer?”

The answer to that question is, apparently, “no.”

The senators tasked with questioning Matthew Olsen during his confirmation hearing have every right to ask this and other questions – regardless of what Wittes and Chesney believe.

Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.